Alabama Education Ass'n v. Bentley (803 F.3d 1298, 2015)

ED CARNES, Chief Judge:

In February 2011, the Alabama Education Association (AEA), a public-sector union, and related parties filed a 42 U.S.C. § 1983 lawsuit challenging the constitutionality of Alabama Act No. 2010-761 (codified at Ala.Code § 17-17-5) (Act 761). Act 761 “prohibits] a state or local government employee from arranging by payroll deduction or otherwise the payment of any contribution to an organization that uses any portion of those contributions for political activity.” Ala. Educ. Ass’n v. State Superintendent of Educ. (AEA I), 665 F.3d 1234, 1235 (11th Cir.2011) (quotation marks omitted). That prohibition alone, we have previously decided in another appeal involving this same lawsuit, is not a violation of the First Amendment. Id. at 1237; see Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 355, 129 S.Ct. 1093, 1096, 172 L.Ed.2d 770 (2009). And we have also already decided that Act 761, as interpreted by the Alabama Supreme Court, is not unconstitutionally overbroad or impermis-sibly vague. Ala. Educ. Ass’n v. State Superintendent of Educ. (AEA II), 746 F.3d 1135, 1139-10 (11th Cir.2014).

This appeal stems from another claim that AEA brought against Act 761, which is that it violates the First Amendment rights of AEA and its members because the subjective motivations of the lawmakers in passing the Act were to retaliate against AEA for its political speech on education policy. The specific issues before us arise from AEA’s pursuit of that claim through subpoenas seeking files of the Alabama Senate President Pro Tem-pore, the Speaker of the Alabama House of Representatives, the current Governor of Alabama, and the former governor. (For convenience, we will' refer to those four collectively as “the four lawmakers” even though two of them are or were governors.)

Before us now are the lawmakers’ petitions for writs of mandamus and their appeals, all challenging the district court’s refusal to quash AEA’s subpoenas. We have two questions to answer: Do we have jurisdiction to hear the appeals? And, if so, did the district court abuse its discretion in refusing to quash AEA’s subpoenas? Our answers are yes, and yes.

I. Background and Procedural History

For several decades Alabama law facilitated public-sector unions’ collection of membership dues by authorizing the use of government resources to deduct those dues from the paychecks of state and local government employees who permitted it. See, e.g., Ala.Code § 16-22-6(a); id. § 36-1-4.3. Under state law at the time there was no restriction on the purpose for which those withheld membership dues could be used by the unions. See id.

That changed in the wake of the November 2010 election when the Republicans captured both houses of the Alabama legislature for the first time since Reconstruction. The next month outgoing Republican Governor Bob Riley called a special session of the newly elected legislature to consider an ethics reform package. That special session produced Act 761. See Ala. Code § 17-17-5. Act 761 changed the State’s previous payroll deduction policies by prohibiting state and local public-sector employees from arranging, “by salary deduction or otherwise,” for: (1) payments of dues to a membership organization that “uses any portion of the dues for political activity,” or (2) payments to a political action committee. Id. § 17 — 17—5(b)(1). As a result, public-sector unions like AEA were forced to choose between using state payroll deduction procedures to collect their membership dues and using their membership dues to fund political activity.

In an attempt to avoid having to make that choice, AEA filed its § 1983 lawsuit before Act 761 went into effect, challenging the Act as unconstitutional on several grounds. The named plaintiffs are AEA, A-YOTE (the political action committee associated with AEA), and six AEA members. (For brevity’s sake, we are referring to them collectively as “AEA.”)

The complaint asserted that Act 761 violated AEA’s constitutional rights to due process, equal protection, freedom of speech, and freedom of association. It named as defendants several state government officials in charge of enforcing Act 761, including current Governor Robert Bentley, the Alabama Comptroller, and the Alabama Finance Director. AEA sought a declaratory judgment that the Act was unconstitutional, an injunction barring implementation and enforcement of the Act, as well as attorney’s fees and costs.

The district court granted .a preliminary injunction in March 2011 barring enforcement of Act 761. Ala. Educ. Ass’n v. Bentley, 788 F.Supp.2d 1283, 1328 (N.D.Ala.2011). The court did so based on AEA’s claim that the Act was vague and overbroad in violation of the First Amendment. Id. at 1310-28. The defendants appealed, and a different panel of this Court (1) narrowed the scope of the injunction to permit enforcement of the Act in a manner consistent with the restriction on payroll deductions that was approved by the Supreme Court in Ysursa, and (2) certified two questions to the Supreme Court of Alabama about the scope of Act 761. AEA I, 665 F.3d at 1237-39.

After the Supreme Court of Alabama answered the certified questions, see Superintendent of Educ. v. Ala. Educ. Ass’n, 144 So.3d 265, 278 (Ala.2013), this Court held that Act 761 was neither overbroad nor void for vagueness, reversed the district court’s order granting the preliminary injunction, and remanded the case for further proceedings consistent with its opinion, AEA II, 746 F.3d at 1140. That opinion was issued in February 2014.

Meanwhile, back in April 2012, the district court had entered an order allowing AEA to proceed with discovery on the claims that were not the basis for the preliminary injunction and, as a result, were not involved in the pending appeal. In June 2012, the defendants moved to dismiss all of those remaining claims.

That same month, AEA served the subpoenas that led to these appeals. Those subpoenas went to, among others, Governor Bentley, former Governor Bob Riley, Alabama House of Representatives Speaker Mike Hubbard, and Alabama Senate President Pro Tempore Del Marsh. The subpoenas sought production of six categories of documents relating to; the contents and passage of Act 761, any similar proposals to stop payroll deductions and collection of dues for employee organizations, as well as any communications regarding AEA and the other plaintiffs in the lawsuit. The three who received subpoenas who were not defendants in the lawsuit— former Governor' Riley, Representative Hubbard, and Senator Marsh — promptly filed motions to quash the subpoenas, claiming various governmental privileges, including their legislative privileges. The district court held those motions in abeyance and stayed discovery pending its ruling on the defendants’ motions to dismiss.

In August 2012, the district court granted the defendants’ motions to dismiss AEA’s claims that were based on equal protection, viewpoint discrimination, and unconstitutional condition theories. It also dismissed Governor Bentley as a party to the lawsuit after AEA conceded that he was not a proper defendant.

Only one of AEA’s claims survived against the remaining defendants and it was one that was not explicitly stated in the complaint. The surviving claim asserted that Act 761 was an unconstitutional act of governmental retaliation against AEA for its past acts of political expression. Under this retaliation theory, AEA claimed that Act 761 was an act of political retribution against AEA for its past opposition to education policy proposals by Governor Riley and other Alabama Republicans. The district court concluded that this was a viable enough claim to proceed past the motion to dismiss stage in light of our decision in Georgia Ass’n of Educators v. Gwinnett County School District, 856 F.2d 142, 144-45 (11th Cir.1988).

The Gwinnett County decision does not specify what plaintiffs must prove to establish that an elimination of automatic payroll deductions amounts to unconstitutional retaliation. See id. In its reasoning, the district court filled that gap by borrowing from two of our decisions involving retaliation claims brought by students against state educational institutions. See Castle v. Appalachian Tech. Coll., 631 F.3d 1194, 1197 (11th Cir.2011) (outlining the elements of a First Amendment retaliation claim in assessing a nursing student’s claim that she was suspended for reporting one of her supervisors for falsifying attendance records); Keeton v. Anderson-Wiley, 664 F.3d 865, 877-78 (11th Cir.2011) (doing the same in assessing a graduate student’s claim she was subjected to a “remediation plan” after she expressed her personal religious beliefs). The court concluded that AEA had to establish all of the following: (1) its speech was constitutionally protected; (2) the elimination of payroll deductions would likely deter persons of ordinary firmness from engaging in such speech; (3) there was a. causal relationship between Act 761 and AEA’s past political expression; and (4) the lawmakers who passed Act 761 were “subjectively motivated” by AEA’s political expression. The defendants filed a motion asking the district court to certify an interlocutory appeal of the issue of whether the complaint did state a viable claim for relief on a First Amendment violation based on a retaliation theory, see 28 U.S.C. § 1292(b), but the district court declined to do so.

In August 2012, Governor Bentley, who was no longer a party to the lawsuit, filed a motion to quash the subpoena directed to him. Like the other three lawmakers who had filed motions to quash, Governor Bentley asserted that various governmental privileges, including his legislative privilege, exempted him from having to respond the subpoena.

In January 2013, the district court denied all four lawmakers’ motions to quash. The court’s order extensively discussed the various privileges asserted by the four lawmakers, but it based its ruling on what it believed to be the lawmakers’ failure to properly assert those privileges. The court relied on a Third Circuit decision to conclude that there were four requirements for invoking the privileges that the lawmakers had asserted. See United States v. O’Neill, 619 F.2d 222, 226 (3d Cir.1980). The court ruled that all of the lawmakers had failed to meet any of the four requirements for asserting any of the privileges they had asserted. It ordered each of them to “provide full and complete responses to the subpoenas” by February 1, 2013.

The lawmakers then sought review by this Court, filing petitions for writs of mandamus, see 28 U.S.C. § 1651, and appeals under 28 U.S.C. § 1291. We issued an order that: (1) consolidated into a single appeal all of the mandamus petitions and appeals, and (2) stayed the district court’s production order pending our decision. In the meantime, AEA has received documents the lawmakers do not contend are privileged but none of the documents that they contend are privileged.

II. Appellate Jurisdiction

The lawmakers filed their appeals under 28 U.S.C. § 1291, which grants us “jurisdiction of appeals from all final decisions of the district courts of the United States.” A “final decision” is usually a final judgment or similar order “by which a district court disassociates itself from a case.” Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 42, 115 S.Ct. 1203, 1208, 131 L.Ed.2d 60 (1995). The collateral order doctrine, however, recognizes “a small category of decisions that, although they do not end the litigation, must nonetheless be considered ‘final.’ ” Id. (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949)).

It is the law of this circuit that one who unsuccessfully asserts a governmental privilege may immediately appeal a discovery order where he is not a party to the lawsuit. Branch v. Phillips Petroleum Co., 638 F.2d 873, 879 (5th Cir. Unit A March 5, 1981) (holding, in a case in which the government was not a party, that circuit precedent “extends the right of immediate appeal to the government even when it is itself in custody of the subpoenaed material”); Cates v. LTV Aerospace Corp., 480 F.2d 620, 622 (5th Cir.1973) (“[Discovery orders may be appealable when an executive privilege is involved and the executive or governmental agency is not a party to the lawsuit.”); Carr v. Monroe Mfg. Co., 431 F.2d 384, 387 (5th Cir.1970) (“[Discovery orders may be appeal-able where a governmental privilege is asserted and the government is not a party to the suit.”). Our precedent is clear that government officials may appeal from the discovery order itself without waiting for contempt proceedings to be brought against them. See Branch, 638 F.2d at 878-79.

The four lawmakers who have moved to quash the subpoenas are all present or former government officials whom the district court has ordered to produce documents in spite of their assertion of various governmental privileges. None of the four lawmakers is a party to the lawsuit and neither are their agencies or the State of Alabama itself. Under our circuit precedent, they may immediately appeal the district court’s discovery order.

AEA argues that our precedent should be read as permitting “a pre-con-tempt appeal only where it is the government itself that claims the privilege.” That position cannot be squared with our Cates decision, which held that executive officials — not just government entities— may immediately appeal a discovery order denying a claim of executive privilege. See Cates, 480 F.2d at 622 (holding that “discovery orders may be appealable when an executive privilege is involved and the executive or governmental agency is not a party to the lawsuit”). Since a government official can immediately appeal the rejection of a claim of executive privilege without the government itself being a party, it would be inconsistent to hold that a government official cannot immediately appeal the rejection of a claim of legislative privilege unless the government is a party. No difference between executive and legislative privilege would justify that inconsistency.

Recognizing the problem its position faces, AEA argues that our prior precedent permitting government officials to immediately appeal the denial of motions to quash based on assertions of governmental privilege has been overruled by the Supreme Court’s decision in Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009). That decision held that “the collateral order doctrine does not extend to disclosure orders adverse to the attorney-client privilege.” Id. at 114,130 S.Ct. at 609. It said nothing about the kind of governmental privileges asserted here or any governmental privilege for that matter. Nor did it alter the scope of the collateral order doctrine. Mohawk is not the kind of “clearly on point” Supreme Court precedent that is required to overrule our' prior panel precedent. See Garrett v. Univ. of Ala. at Birmingham Bd. of Trustees, 344 F.3d 1288, 1292 (11th Cir.2003); see also Branch, 638 F.2d at 878-79 (holding that our decisions allowing government officials to seek immediate appeal of discovery orders were still viable after a Supreme Court decision holding that private individuals cannot seek immediate appeal from discovery orders compelling the production of documents). We mijst follow our-precedent “unless and until it is overruled or undermined to the point of abrogation by the Supreme Court or by this court sitting en banc.” United States v. Archer, 531 F.3d 1347, 1352 (11th Cir.2008); United States v. Chubbuck, 252 F.3d 1300, 1305 n. 7 (11th Cir.2001) (